' SADIQ HUSSAIN BHATTI, J:--- This second appeal is directed against the judgment dated 19-5-2012 passed in First Appeal No,74 of 2009 by II Additional District Judge, Karachi West against the order dated 26-2-2009 passed by III Senior Civil Judge, Karachi West in Suit No,852 of 1999 decreeing the suit in favour of respondents Nos.1 and 2, dismissing the same and maintaining the order of the Senior Civil Judge, Karachi West.
2. The brief facts of the case are that appellant Muhammad Aqil, since deceased and represented by his legal heirs, was son of respondent No,1, now deceased, and brother of respondent No,2 Muhammad Asif Muhammad Ibrahim, father of deceased appellant Muhammad Aqil and respondent No,2, Muhammad Asif, was the owner of House No,376, new No,496, Sector 9-E, Orangi Town, Karachi (hereinafter referred to as "the disputed property"). After the death of Muhammad Ibrahim in the year 1980, both the appellant Muhammad Aqil and respondents Nos.1 and 2, mother and brother of Muhammad Aqil respectively, started living in the disputed property and the disputed property was transferred in the name of respondent No,1, widow of late Muhammad Ibrahim and mother of deceased appellant Muhammad Aqil and respondent No,2 Muhammad Asif. After passage of some time Muhammad Aqil started claiming owner of the disputed property on the basis of a sale agreement allegedly executed by the respondent No,1 with him and asked the respondents Nos.1 and 2 to vacate the same. The respondent No,1 filed Suit No,1078 of 1997 before the Court of Civil Judge, Karachi West for declaration and permanent injunction but when she came to know that the appellant Muhammad Aqil has got the disputed property leased out in his name by KMC and also got issued transfer order dated 26-3-1992 in his name, she withdrew the earlier suit with permission to file fresh suit. Accordingly, the earlier suit was withdrawn and Suit No,852 of 1999 was filed by her for declaration, permanent injunction, cancellation of documents and possession against the appellant.
3. Notice of this suit was issued to the appellant Muhammad Aqil who filed written statement denying all the allegations made in the plaint of the suit.
4. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:-- -
(1) Whether the suit of the plaintiff is not maintainable?
(2) Whether plaintiff is lawful owner of property in dispute?
(3) Whether sale agreement dated 23-2-1991 is forged and manipulated and if so what is its effect?
(4) Whether lease deed and transfer order of property in dispute obtained by the defendant No,1 illegally from defendants No,2 and 3 by playing fraud?
(5) Whether sale agreement, lease deed and transfer order or property in dispute are liable to be cancelled?
(6) Whether plaintiff is entitled for relief claimed for?
(7) What should the decree be?
7. Respondent No,2, who was plaintiff No,2 in the suit, examined himself and produced documents and also produced witness namely Muhammad Waseem Ansari, however, plaintiff No,1 could not come into the witness box due to her ill health. Applications filed on her behalf of her examination through commissioner were dismissed. The appellant No,1/defendant No,1 examined himself and produced some documents and closed his side.
6. After hearing the arguments of the learned counsel for the parties the learned trial Court dismissed the suit vide judgment dated 25-1-2003. The plaintiffs/respondent Nos.1 and 2 assailed the said judgment by filing Civil Appeal No,45 of 2003 which was allowed by 1st Additional District Judge, Karachi West vide judgment dated 16-8-2004, set aside the impugned judgment and remanded the case back to the trial Court with direction to send the alleged sale agreement to a Writing Expert to examine the same.
7. On remand, the matter was again heard by learned III Senior Civil Judge, Karachi West and, vide judgment dated 26-2-2009, decreed the suit in favour of the plaintiffs. The appellant filed Civil Appeal No,74 of 2009, assailing the judgment dated 26-2-2006 but the same was dismissed on the ground of limitation vide order dated 16-11-2009 and the II Appeal filed before this Court, assailing order dated 16-11-2009, also met the same fate but the Hon'ble apex Court, vide order dated 30-11- 2011 set aside the judgments of the two Courts below, condoned the delay in filing of the appeal and remanded the matter to the learned II Additional District Judge, Karachi West to decide the appeal on merits strictly in accordance with law preferably within a period of six months from the date of that order.
8. The learned II Additional District Judge, Karachi West again heard the matter and vide judgment dated 19-5-2012, dismissed the same and upheld the judgment and decree passed by the learned trial Court. Hence this second appeal.
9. The learned counsel for the appellant contended that despite the deposition of the witness of respondent No,3 (CDGK) in respect of the lease deed executed in favour of the appellant, the trial Court decreed the suit in favour of the respondents Nos.1 and 2. The learned counsel also contended that the first suit filed by the respondents Nos.1 and 2 was withdrawn without permission for filing fresh suit, therefore, the second filed by the respondents was not maintainable. In this regard she relied on 1995 CLC 183 The learned counsel also stated that no title documents were produced by the respondents Nos.1 and 2 but even then the suit was decreed in their favour. It was also contended that the trial Court erred in holding that since two different typewriters were used in preparing the sale agreement, therefore, the same was forged while the thumb-impression thereon was not denied. She further contended that the execution of the sale agreement was denied by mere words but no evidence was produced in this regard.
10. On the other hand, learned counsel for the respondents Nos.1 and 2 vehemently denied that the first suit filed by the respondents Nos.1 and 2 was withdrawn without permission for filing fresh suit.
The learned counsel further stated that the thumb-impression of the respondent No,1 on the alleged sale agreement was obtained by fraud and that no sale consideration was ever paid to the respondent No,1 in respect of the disputed property by the appellant Muhammad Aqil. He submitted that the impugned judgment of the two Courts below do not suffer from any infirmity or illegality and do call for any interference by this Court. He, therefore, prayed that this appeal may be dismissed and the judgments of the Courts below may be maintained.
11. In support of his contentions the learned counsel relied on the following case-law:---
(1) Bhai Chanan Singh v. Committee for Management of Gurdwara Mai Malan through Balbir Singh AIR 1941 Lahore 192,
(2) Lala Suraj Bhan and others v. Hafiz Abdul Khaliq - AIR 1941 Lahore 195,
(3) S. Nisar Ali v. Feroze Din Rana and another (1969 SCMR 933),
(4) Karim Gul and another v. Shahzad Gul and another (1970 SCMR 141),
(5) Mst. Walayat Khatoon v. Khalil Khan and another (PLD 1979 SC 821),
(6) Zafar Ahmed v. Mst. Hajran Bibi (PLD 1986 Lahore 399),
(7) Mst. Hanifan Bibi v. Lal Din through LRs and another (2000 CLC 572).
12. I have heard the learned counsel for the parties and have gone through the record and the case-law cited before me.
13. The dispute between the contesting parties is with regard to the ownership of the disputed property and the bone of contention is the sale agreement allegedly executed by respondent No,1, late Shabban Bibi, in favour of her son Muhammad Aqil. It is an admitted fact that the disputed property belonged to late Muhammad Ibrahim, who was husband of respondent No,1 and father of both the appellant Muhammad Aqil and respondent No,2, Muhammad Asif. It is also not disputed that after the death of the said Muhammad Ibrahim the disputed property was transferred in the name of defendant No,
1. Thereafter, it is alleged by the appellant Muhammad Aqil, who was the elder son of now deceased respondent No,1 Mst. Shabban Bibi, that the disputed property was purchased by him from his mother, respondent No,1, through sale agreement dated 23-9-1991 for sale consideration of Rs,55,000/-. This is denied by the respondents Nos.1 and 2 and it is stated that in fact the appellant, being eldest son of the respondent No,1, took the title documents of the disputed property from respondent No,1 on the pretext of obtain loan from House Building Finance Corporation and fraudulently got transferred the disputed property in his name by making a false/bogus sale agreement. Thus, the fate of this appeal hinges on the fate of the sale agreement.
14. The main argument of the learned counsel for the appellant on the point of the sale agreement was that the trial Court did not take into consideration the fact that the thumb-impression on the sale agreement was not denied by respondent No,2. This argument does not provide any help to the appellant as the case of the respondents Nos.1 and 2 is that thumb-impressions of the respondent No,1 were fraudulently obtained by the appellant on many documents. On the point of sale agreement the learned trial Court held as under:--- "It is pertinent to mention here that the said alleged sale agreement dated 23-2-1991 was sent to Handwriting Expert and report was obtained thereon as Exh."H". The Handwriting Expert S.H. Siddiqui was also examined by this court as a Court witness. He has stated during his evidence that the two pages of sale agreement dated 23-2-1991, marked as Exhs.H/1 and H/2 were typed with two different typewriters. He has admitted his signature on his report dated 22-5-2005 marked as Exh."H", which was in detail as under: "CONCLUSION"
"I have considered in detail all the characteristics of typed matter such as slant, angle, alignment and size of the letters/ words and carried out scientific tests in stront daylight and artificial light by the help of lenses of different powers in order to trace out significant difference. I have pointed out the dissimilarity in the typed matter by arrow marks and underlined by red ink on the photocopies especially prepared for this purpose. Therefore, I am of the opinion that the typed matter on two pages (A and B) is different from each other. In other words two different machines has [have] been used. The two documents received from the Hon'ble Court are returned."
15. It is noteworthy that the above writing expert was not cross-examined by the counsel for the appelfant despite several opportunities provided to her.
16. The learned Appellate Court, after quoting the above passage from the impugned Judgment of the trial Court, held as under:--- "It is thus clear that the sale agreement was forged and manipulated. The learned trial Court has very rightly answered issue No,3 in affirmative by holding that the sale agreement dated 23-2-1991 was manipulated."
17. The learned counsel for the appellant contended that a document cannot be termed to be fake/manipulated only because two different typewriters were used for the reason that if one typewriter breaks down then the document would be completed by using another typewriter. This argument, though appearing on the face to be tilting the balance in favour of the appellant, looses its force when examined deeply. If there was any incident necessitating use of two typewriters the same should have been narrated in the examination-in-chief or at any other stage in the evidence. Similarly, the person who typed the agreement on two different typewriters should have been examined to explain the reason for the same. None of this was done. Simply putting forth a proposition would not help the appellant in his endevour to show that the use of two typewriters in making the sale agreement was not fatal to his case. The scenario would have been entirely different if no objection to the agreement was made by any of the parties to the agreement. In the present case one of the parties to the agreement strongly denied execution of the agreement and pleaded fraud in obtaining thumb-impression thereon on the pretext of obtaining loan from HBFC.
18. Thus, there are concurrent findings of the two Courts below on the question of the sale agreement being false and fabricated one. This finding of fact cannot be disturbed in second appeal unless it is shown that this finding is vitiated by an error of law. Reliance is placed on the case of Lal Suraj Bhan and others (supra).
19. The learned counsel also raised a legal objection regarding maintainability of the second suit filed by the respondents No,1 and 2 on the ground that no such permission was granted by the Court. The application under Order XXIII, rule 1(2), C.P.C. Is available at page 29 of the file, which reads as under:- "It is prayed on behalf of the plaintiff that this honourable Court may be pleased to grant permission to withdraw the present suit to file another fresh suit before the competent court having jurisdiction, in view of the lease deed submitted by the defendant along with his written statement in respect of the suit property." (emphasis is supplied)
' On the above application, the learned V Civil Judge, Karachi West passed the following order:--- "Suit is disposed of as withdrawn with no order as costs."
20. From the above quoted application for withdrawal of the suit, particularly from the portion underlined, it is crystal clear that the intention of the plaintiffs was clear that they want to file another suit. G Thus. If permission to file fresh suit was not given in so many words would not be fatal to the case of the plaintiffs/respondents No,1 and 2. In the case of S. Nisar Ali (supra), the Hon'ble apex Court observed, that "It seems clear that what the plaintiff in the first suit intended was to reserve his right to bring a subsequent suit for commission and the court also was minded to give him that. Permission. In the circumstances, the mere omission of the Court to mention in so many words that permission to bring a fresh suit was being given does not, in our opinion, render the second suit incompetent." Similar is the position in the present case. Therefore, the suit was not incompetent merely because the learned Court omitted to mention that permission to file fresh suit is granted as H the intention of the plaintiffs was clear from the contents of the application for withdrawal of the suit.
21. The learned counsel for the appellant also argued that the witness of CDGK supported the version of the appellant that the transfer of the disputed property in the name of the appellant was proper, therefore, there was no occasion for the trial Court to have decreed the suit in favour of the respondents No/1 and 2/plaintiffs. In the evidence it has come on record that the witness of CDGK stated that the record of CDGK was burned and he was deposing on the basis of the documents provided by the appellant. One of the most important document was the sale agreement dated 23-2-1991 on the basis of which the entire edifice of the appellants case is built. Once this document was declared to be false and fabricated one, the entire edifice falls to the ground.
Whatever steps the CDGK took in this case were on the basis of the agreement dated 23-2-1991 and once this document looses its integrity the subsequent steps also loose sanctity.
22. So far as non-production of title documents by the respondents Nos.1 and 2 is concerned, suffice it to say that it was an admitted position between the two contesting parties that prior to the coming up of the alleged sham sale-deed dated 23-2-1991, the property stood in the name of the respondent No,
1. Therefore, all that was needed for the respondents was to show that the said sale-deed is a sham and manufactured document and, thereafter, the subsequent transfer and lease of the property in dispute in favour of the appellant would become null and void. Since the contesting respondents were able to show that the sale-deed dated 23-2-1991 was a sham and manufactured document, therefore, there was no need for the respondents to produce any title documents. Even the appellant Muhammad Aqil himself admitted that the property belonged to respondent No,1 by allegedly entering into a sale agreement with her.
23. The upshot of the above discussion is that the appeal is dismissed and the concurrent judgments of the two Courts below are maintained as the learned counsel for the appellants has not been able to show that the same suffers from any infirmity or are vitiated by an error of law.